Civil Forfeitures in Montana

The Institute for Liberty gives Montana a D+ grade for its civil forfeiture laws. This, of course, is not good. It summarizes Montana’s law this way:

Montana has terrible civil forfeiture laws.  The state only requires probable cause to forfeit property.  This is the lowest standard of proof the government must meet to prove your property is related to a crime.  It is the same standard required for a search warrant and far lower than the beyond a reasonable doubt standard required for a criminal conviction.  Moreover, once Montana seizes your property, you are presumed guilty, and you bear the burden of proving that either the property was not forfeitable or that the conduct giving rise to the seizure was without your knowledge or consent.  Moreover, law enforcement receives 100 percent of the proceeds from forfeiture.

News accounts reveal that almost half of some county prosecutors’ salaries are paid by funds from forfeiture accounts.  The Montana State Bar issued an ethics opinion that found no conflict of interest despite an acknowledgement that the funds are often used to hire deputy prosecutors that assist the county prosecutor.  The exact amounts and how these funds are used are difficult to determine, however, because there is no requirement that forfeiture data be reported.

In 2007, the Montana legislature considered reforming its civil forfeiture laws but rejected a bill that would have eliminated the profit incentive that law enforcement currently has.  It would have also plugged the federal equitable sharing loophole that allows states to avoid state laws protecting property owners from wrongful forfeiture.

Having handled civil forfeiture cases in Montana, I understand well the criticism of Montana’s civil forfeiture laws.

When the State seizes property and files a civil forfeiture action, it puts the citizen at a serious disadvantage of having to prove their innocence. What is more, since the action is civil and not criminal and is really an action against the property itself, the citizen has no constitutional protections of remaining silent, against self-incrimination and trial by jury. In short, the citizen is put in an untenable situation where he either protects himself by not participating in the process but loses his property or protects his property but loses his criminal procedure rights.

What makes it worse, the funds that are obtained through civil forfeiture actions gives tremendous incentive for police officers to look for property to seize. Instead of respecting the private property rights of the citizens, the State is engaged in a money-making venture through its civil forfeiture actions. Montana Shooting Sports Association president, Gary Marbut, also criticizes Montana’s civil forfeiture statute in his article, stating,

Originally argued to take the profit out of crime, forfeiture of property has come to be a mainstay of many police agency budgets with expanded forfeiture authorities and no oversight.  The net effect is to corrupt police agencies by turning them into robbers.

There are some who propose that all funds obtained through civil forfeiture actions go into a neutral funding location or even go to fund the Office of Public Defender to take the incentive away for police departments and agencies. These political solutions may help resolve many of the problems that go with Montana’s civil forfeiture laws. But until that happens, citizens may be subjected to arbitrary and over-bearing civil forfeiture actions.

Moreover, citizens should know that State officers coordinate their efforts with federal officers, such that one could be subject to prosecution or civil forfeiture by both jurisdictions. Oftentimes, state officers will coerce citizens into “cooperating” with them by telling them that the federal government will prosecute them otherwise. Not wanting to face federal charges, citizens often confess and say things that may not necessarily be true just to keep from being oppressed by federal and state prosecutors.

Citizens should also know that many times, federal officers will enter into the homes and properties of people when State officers obtain a warrant from a State judge. Once the officers are in the property and make accusations against the citizen, the citizen oftentimes feels overwhelmed. So, when the government files a civil forfeiture action, the citizen simply doesn’t bother defending his property and would rather lose the property than jeopardize himself with criminal prosecution. In the end, the State gets by with seizing hundreds of thousands of dollars worth of property each year without hardly a defense being raised.

If the government has seized your property and filed a civil forfeiture petition, time is of the essence because you have only 20 days to answer a petition, and that time cannot be extended for any reason. See the Montana civil forfeiture procedure statute. If you fail to answer the government’s civil forfeiture petition within 20 days of service, you will forever lose your right to the forfeited property. So, you must act now to defend your property.

Leave a Reply

Your email address will not be published.